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2006 DIGILAW 1048 (ALL)

VAKIL AHMAD v. ABDUL HAI (DECEASED) BY LRS.

2006-04-19

SUNIL AMBWANI

body2006
JUDGMENT Hon’ble Sunil Ambwani, J.—The cause shown is sufficient. The delay condonation application and the restoration application for recalling the order dated 27.2.2003 dismissing the appeal for want of prosecution is recalled. The second appeal is restored to its original number and has been heard. 2. This defendant second appeal arises out of a O.S. No. 175 of 1972, Abdul Hai v. Vakil Ahmad, for possession over the premises scheduled on the foot of the plaint and recovery of Rs. 720/- as damages. The Suit was dismissed on 4.9.1974, with the findings that the plaintiff is not the owner of the shop in dispute and that he did not let out the shop as alleged. The Civil Appeal No. 48 of 1975 was allowed on 25.10.1976 and while setting aside the decree under appeal, the suit was decreed for recovery of possession of the shop, arrears of rent Rs. 720/-, and for pendente lite and future damages at the rate of Rs. 20/- per month. 3. I have heard Sri Rajeshwar Tiwari learned counsel for the appellant, but did not have the benefit of the arguments for the respondent as no one appeared for them. 4. The plaintiff pleaded that his brother acquired plot no. 554 area .006 acre situate in village Kurthi Jafarpur District Azamgarh prior to the abolition of Zamindari with written permission of the then Zamindar in 1949. In the year 1953 he constructed a shop and in 1968 it was converted into a pucca structure. The shop was let out in January, 1969 to the defendants at Rs. 20/- per month. The defendant did not pay the rent since after 1.10.1969. The suit was initially filed for ejectment, but later on as the defendant denied the title, it was converted into regular suit for recovery of possession. 5. The plaint allegations further stated that in 1969 one Mohd. Umar and Wazeer Ahmad filed suit No. 523 of 1969 in collusion with the defendant but later they admitted the title of plaintiff and got the suit dismissed. On the filing of the aforesaid suit, the defendants stopped the payment of rent and also denied plaintiff’s title, and so plaintiff filed this suit. 6. The defendant took up a defence in their written statement that the kachcha shop belonged to their father Rahman Ali. On the filing of the aforesaid suit, the defendants stopped the payment of rent and also denied plaintiff’s title, and so plaintiff filed this suit. 6. The defendant took up a defence in their written statement that the kachcha shop belonged to their father Rahman Ali. Some six years ago defendant Mukhtar Ahmad the real brother of defendant made new constructions after demolition of old shop. The defendants are owner in possession of the same and the plaintiffs have nothing to do with it. Mohd. Umar and others filed Suit No. 523 of 1969 which was later on dismissed in collusions with the plaintiff and thus the present suit is barred on the principles of res judicata. The plaintiffs have their shop towards the west of the disputed shop and that the suit has been filed only to harass them. 7. The appellate court discussed the entire evidence and found that Ram Ghulam, Gaddar Singh and Ram Surat Singh Zamindar had given written permission Paper No. 30AI (Ext 4) on 6.4.1949 for constructions on Plot No. 554 area 0.006 acres to plaintiff and his brother Shibli. The Khewat and Khasra entries proved that Ram Ghulam and others were Zamindars. The decree in previous suit No. 523 of 1969, filed by Mohd. Umar was in respect of this very land. Ram Surat Singh Zamindar was examined as PW 2, Abdul Subhan was examined as PW.3, Daya Shanker, a tenant of one of the shop of the appellant as PW 4. They proved the contract tenancy between plaintiff and defendants. The appellate court found that the plaintiff had raised constructions. Sri Rahman Ali, father of the defendant No. 1 Vakil Ahmad, had signed and witnessed the document of permission. The defendant failed to prove that they were owners of the land and the shop. From the site plan prepared by the Commissioner it was found that the house of the plaintiff-appellant adjoins the shop and that his two other shops are in the west of the disputed shop, after a narrow lane. Mohd. Umar was defendant in O.S. No. 523 of 1969. The plaintiff of that suit admitted the title of the appellant. The defendants did not have cared to file the copy of the written statement of the previous suit. Mohd. Umar was defendant in O.S. No. 523 of 1969. The plaintiff of that suit admitted the title of the appellant. The defendants did not have cared to file the copy of the written statement of the previous suit. Although no survey map was prepared but the boundaries given at the foot of the plaint, tallied with the permission deed (Ext 4). The judgment of trial court dismissing the suit was set aside and the suit was decreed. 8. Sri Rajeshwar Tiwari learned counsel for the appellant submits that the appeal was admitted on 10.1.1977 before enforcement of Act No. 104 of 1976 amending Section 100, C.P.C., came into effect on 1.2.1977, and thus the appeal may be heard on the question of law framed in the memorandum of appeal. He submits that the plaintiff-appellants claim was barred by principle of res judicata as the decree in suit No. 523 of 1969 in which a compromise was arrived at between the parties was binding on the parties. The defendant title was fully proved by that decree. The vital issue whether the person who had granted the permission were owner of the land, was not decided and that there was no evidence to demonstrate as to who had built the shop. 9. In O.S. No. 523 of 1969 filed by Mohd. Umar, the defendant in the present suit and the plaintiff of that suit admitted the title of Abdul Hai the plaintiff-respondent. In case the defendants-appellants in this appeal had not agreed with the settlement between Mohd. Umar and Abdul Hai, they as parties to the suit should have raise objections to it. The plaintiffs traced out their title from the permission given by the Zamindar, and the boundaries of the land which was adjacent to their house and other two shops and also established that they had raised kaccha construction which was subsequently made into pucca constructions. As against, the defendant did not lead any evidence of title at all. 10. I do not find that any question of law as stated in the grounds raised by the counsel for the appellant arises for consideration in the second appeal. Even if compromise in O.S. No. 523 of 1969 between Mohd. Umar and plaintiff-respondent was not binding upon the defendant, the plaintiffs had established their title by cogent evidence and the contract tenancy of the defendant-appellant 11. Even if compromise in O.S. No. 523 of 1969 between Mohd. Umar and plaintiff-respondent was not binding upon the defendant, the plaintiffs had established their title by cogent evidence and the contract tenancy of the defendant-appellant 11. The second appeal is, as such, dismissed with costs. The amount deposited by the appellants in terms of the interim order shall be withdrawn and allowed to be retained by the plaintiff-respondents. The respondents shall also be entitled to recover the costs of this second appeal from the defendant-appellants. Appeal Dismissed. ———